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Section numbers from the book are used where relevant. The book should be read. It has more content and context
20.3.3.1 Ceiling on damages
The current ‘ceiling’ on damages in defamation cases, currently at about £350,000 as referred to by Mr Justice Nicklin in Lachaux
v Independent Print Ltd and Evening Standard Ltd [2021] EWHC 1797 (QB), is calculated in relation to the current maximum level of damages for pain, suffering and loss of amenity in personal injury cases. This was said to have become ‘conventional’ by the then Lord Chief Justice, Lord Judge, in the case of Cairns v Modi [2013] 1 WLR 1015, CA in which he stated that this was not because there could be any precise correlation between personal injury and libel cases, but ‘merely as a check on the reasonableness of any figure being considered in libel proceedings’.
Damages will be awarded on a scale, dependent on various factors in the case, with the highest awards being reserved for the gravest allegations – such as those involving terrorism or murder. The factors a judge will consider when reaching an award of damages include the scale of the harm caused by the libel, the role in society of the person who is defamed and the authority and credibility of the publisher.
'Aggravated damages' may be awarded where the conduct of the defendant has contributed to the harm suffered by the claimant, such as a refusal to offer an apology or their conduct in cross examination during a trial, and would justify additional compensation for injury to feelings. 'Exemplary’ or ‘Special’ damages may also be awarded, to reflect any actual financial loss suffered by the claimant as a result of a defamatory publication.
Controversy over section 40 of the Crime and Courts Act 2013
Following the publication of the Leveson Inquiry report in 2012, the government introduced legislation to implement some of the recommendations made by the then Lord Justice Leveson. These included section 40 of the Crime and Courts Act 2013, which has never been brought into force after receiving widespread criticism from media organisations and freedom of speech campaigners. The section provides that courts must generally not award costs in claims relating to published material against media defendants who are members of an ‘approved regulator’ within the Royal Charter system of press regulation (also created in 2012 and discussed in chapter 2) when the claim is commenced. However, if a media defendant is not a member of an approved regulator at the time of the claim, the court must generally award costs against the defendant.
Section 40 sparked controversy because its provisions mean that a publisher who is not a member of an approved regulator could end up having to pay both their and the claimant’s costs, even in a case where the publisher wins. The News Media Association calculated that Section 40 would cost the regional press £48m a year, and it was roundly criticised by most media organisations, including all national newspaper groups, and campaign group Index on Censorship, which described it as ‘a direct threat to press freedom in the UK’ and said it must be scrapped. The only regulator which signed up to the Charter system was Impress and, as discussed in Chapter 2, its members are mostly hyperlocal news sites and none of the larger media organisations have joined it, choosing to remain in Ipso. Section 40 was in fact never brought into force, and the current Government announced plans to repeal it in 2019 and again in May 2022.